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NCJ Number
Criminal Law Bulletin Volume: 29 Issue: 3 Dated: (May-June 1993) Pages: 262-274
P C Giannelli
Date Published
13 pages
This paper examines court decisions pertinent to principal issues concerning the admissibility of hypnotic evidence.
The principal issues concerning the admissibility of hypnotic evidence involve statements made by a person while under hypnosis and the testimony of a witness whose memory has been "refreshed" by hypnosis. The first issue concerns the subject's out-of-court statements, and the second concerns in-court testimony. Courts uniformly reject the admissibility of statements made by a subject while hypnotized. Since these statements are made out of court and are offered for the truth of the matters asserted, they are hearsay. The courts that have addressed the admissibility of hypnotically refreshed testimony have taken several different approaches. Some courts have adopted a per se rule of exclusion. Other courts have permitted hypnotized witnesses to testify; some of these courts have ruled that hypnosis affects the weight, not admissibility, of testimony; others have recognized a trial court's discretion to admit the testimony of a previously hypnotized witness if the courts find the testimony reliable. Still other courts have admitted hypnotically refreshed testimony when certain procedural safeguards are satisfied. The leading case in the latter regard is State v. Hurd, decided by the New Jersey Supreme Court in 1981. Although recognizing the dangers associated with hypnotically refreshed testimony, the court did not rule such evidence inadmissible; it held that such testimony may be admitted if the party seeking admission establishes the reliability of the testimony by clear and convincing evidence, and the trial court finds that the procedures followed were a reasonably reliable means of restoring the witness' recollection. 94 footnotes


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